Opinion
Docket No. 75308.
Decided February 19, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul L. Maloney, Prosecuting Attorney, and John T. Burhans, Assistant Prosecuting Attorney, for the people.
Michael C. Dorstewitz, for defendant on appeal.
Defendant was convicted by a jury of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803. He appeals and we affirm.
This case was the defendant's second trial for the charged offense. His first trial ended in a mistrial on April 14, 1983, after a prosecution witness testified that defendant was arrested in jail, thereby alluding to the fact that defendant had prior convictions.
At defendant's retrial on June 9 and 10, 1983, it became apparent that six prospective jurors had also served on the panel of the defendant's previous trial. Four of these jurors were removed from the panel by peremptory challenges or challenges for cause. The other jurors, however, were not challenged by either attorney and, therefore, remained on the panel. Each jurors was examined by both attorneys as to his ability to be impartial. Each juror stated that neither his prior involvement as a juror nor his reading of newspaper articles concerning the case would affect his impartiality.
When questioned by the trial court, defendant's attorney, who had nine peremptory challenges still available at the end of the jury selection, stated that he had no further challenges and was satisfied with the jury. After defendant was convicted, he brought this appeal claiming that he was denied a fair and impartial trial as a result of the composition of the jury.
In People v Mol, 137 Mich. 692; 100 N.W. 913 (1904), the Michigan Supreme Court determined that the defendant was denied a fair and impartial jury when six of the jurors who sat on the panel that convicted him had sat on a previous panel that had convicted the defendant's codefendant a few days before. In Mol, the Court found that the trial court's denial of the defendant's challenge for cause was unwarranted since, in the Court's opinion, jurors who have had an opportunity to determine the question of another individual's guilt or innocence upon substantially the same testimony and evidence as presented in the case now before them are not the "impartial" jurors to which a defendant is constitutionally entitled.
Similarly, in People v Kamischke, 3 Mich. App. 236; 142 N.W.2d 21 (1966), this Court ruled that the defendant's constitutional right to a trial by an impartial jury was violated when six members of the jury that convicted him had previously sat on a panel which had convicted his accomplice.
On the other hand, in a separate line of cases, this Court has found that the mere fact that a juror has information from a prior trial will not per se disqualify him. People v McCarver (On Remand), 87 Mich. App. 12; 273 N.W.2d 570 (1978), lv den 406 Mich. 964 (1979); People v Wyskochil, 76 Mich. App. 468; 257 N.W.2d 126 (1977). In Wyskochil, this Court held that, where the challenged jurors have indicated during voir dire that they would afford the defendant a fair and impartial trial and where the defense counsel has failed to exhaust his peremptory challenges, there are no grounds for finding that the defendant was denied a fair and impartial jury. Hence, it appears that a defendant is required to make an actual showing of prejudice on the part of the jurors in order for a court to find that the defendant has been denied a fair and impartial jury.
In this writer's opinion it would be better practice not to have any jurors on a jury who had previously participated in another trial involving the defendant. However, where, as here, when questioned by the trial court, defendant's attorney, who had nine peremptory challenges still available, stated that he had no further challenges and that he was satisfied with the jury, the defendant was not denied a fair trial and has no complaint.
Affirmed.